Good News out of Texas

There’s something I thought I’d never say. Good news today on the criminal justice front out of Texas. Kenneth Foster came within hours of execution today for the 1996 shooting murder of Ray LaHood. The killing occurred after a robbery spree during which Mr. Foster was the driver of the getaway car. One of his accomplices got out of the car, followed, and shot Mr. LaHood. No one claims that Mr. Foster pulled the trigger. Mr. Foster claims that he had no idea that his accomplice was going to commit the murder. Yet, unlike two of his accomplices who pleaded guilty, and like the shooter, Mr. Foster was sentenced to death.

Putting aside my basic opposition to the death penalty, it’s outrageous that a person can be sentenced to death for a murder to which he is connected but which he did not himself commit. It violates the notion — fundamental to criminal law — that guilt and innocence are tied to the individual. Arguably, the law is unconstitutional as cruel and unusual punishment. The Supreme Court at one point agreed; it held in 1982 in Enmund v. Florida that it would be a violation of the Eighth Amendment to execute an accomplice to a murder. But only a few years later, in Tison v. Arizona, the Court carved out an exception, allowing for the execution of a defendant whose participation in a capital murder was “major and whose mental state is one of reckless indifference.” Not surprisingly, Texas was happy to oblige, and the state has retained its law allowing for such executions. In his commutation today, Gov. Perry called on the legislature to repeal the law. It’d be close to miraculous if that actually happens. And we all know that this Supreme Court is not about to jump on the defendants’ rights bandwagon.

But there’s an intermediary step that courts and legislatures could take. Foster was tried together with the actual killer. Though juries are instructed to remember that guilt is individual, I’d ask if that’s actually possible. While a consolidated trial might make sense in major tort litigation, where there are tens of defendants and a class or hundreds of individual plaintiffs, it just doesn’t make sense in the criminal context. Courts should avoid consolidation — even, as are most of my suggestions, at the expense of efficiency. There’s just too much at stake.

A fact that Kenneth Foster today got perilously close to demonstrating.